Opposition Brief — Georgia Association of Club Executives, Inc., Petitioner v. Georgia, et al.

No. 24-881

In the

Supreme Court of the United States

GEORGIA ASSOCIATION OF

CLUB EXECUTIVES, INC.,

Petitioner,

v.

STATE OF GEORGIA, et al.,

Respondents.

On Petition for a Writ of Certiorari to the

Supreme Court of Georgia

BRIEF IN OPPOSITION

Logan B. Winkles

Deputy Attorney

General

Frances C. Mulderig

Senior Assistant

Attorney General

Christopher M. Carr

Attorney General of Georgia

Stephen J. Petrany

Solicitor General

Counsel of Record

Ross W. Bergethon

Principal Deputy

Solicitor General

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, GA 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondents

120392

i

QUESTION PRESENTED

Whether a State can impose a one percent tax

on an entire industry—here, adult entertainment

establishments like strip clubs, erotic massage parlors,

and lingerie modeling studios—where that industry

engages in some expressive activity.

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED . . . . . . . . . . . . . . . . . . . . . . . . i

TABLE OF CONTENTS . . . . . . . . . . . . . . . . . . . . . . . . . ii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . . . . iv

INTRODUCTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

I.

Statutory Background . . . . . . . . . . . . . . . . . . . . . . 4

II. Proceedings Below . . . . . . . . . . . . . . . . . . . . . . . . . 6

REASONS FOR DENYING THE PETITION . . . . . . 9

I.

There is no split of authority on any

question implicated here . . . . . . . . . . . . . . . . . . . 11

A. In the few cases that have arisen,

courts have unanimously rejected

a rg u ment s t hat st r ic t sc r ut i ny

shou ld apply t o t a xes on a du lt

entertainment establishments . . . . . . . . . . 11

B. There is no split of authority on the

separate question of whether the

secondary effects doctrine continues

in force . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

iii

Table of Contents

Page

II. This case is a poor vehicle to address

the issues raised in the petition . . . . . . . . . . . . . 24

A. The Assessment is a tax on an entire

industry and does not implicate the First

Amendment at all under Leathers . . . . . . . 25

B. The Assessment is facially content

neutral and thus does not require

application of the secondary effects

doctrine to avoid strict scrutiny . . . . . . . . . 29

III. The ruling below was correct . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 34

iv

TABLE OF CITED AUTHORITIES

Page

Cases

181 South Inc. v. Fisher,

454 F.3d 228 (3d Cir. 2006) . . . . . . . . . . . . . . . . . . . 16-17

9000 Airport LLC v. Hegar,

No. 23-20568, 2025 WL 1024951

(5th Cir. Apr. 7, 2025) . . . . . . . . . . . . . . . . . . . . . . . . . 14

Arkansas Writers’ Project, Inc. v. Ragland,

481 U.S. 221 (1987) . . . . . . . . . . . . . . . . . . . . . . . . 26, 29

Ass’n of Club Execs. of Dallas, Inc. v.

City of Dallas,

83 F.4th 958 (5th Cir. 2023) . . . . . . . . . . . . . . . . . 16, 18

BBL, Inc. v. City of Angola,

809 F.3d 317 (7th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 19

Barnes v. Glen Theatre, Inc.,

501 U.S. 560 (1991) . . . . . . . . . . . . . . . . . . . . . . . . 15, 16

Boos v. Barry,

485 U.S. 312 (1988) . . . . . . . . . . . . . . . . . . . . . 21, 22, 23

Bushco v. Utah State Tax Comm’n,

225 P.3d 153 (Utah 2009) . . . . . . . . . . . . . . . . . 2, 12, 29

Cahaly v. Larosa,

796 F.3d 399 (4th Cir. 2015) . . . . . . . . . . . . . . . . . . . . 18

v

Cited Authorities

Page

City of Austin v.

Reagan Nat’l Advert. of Austin, LLC,

596 U.S. 61 (2022) . . . . . . . 3, 4, 10, 17-19, 24, 27, 30-32

City of Chi. v. Pooh Bah Enters.,

865 N.E.2d 133 (Ill. 2006) . . . . . . . . . . . . . . . . . . . . . 16

City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410 (1993) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

City of Erie v. Pap’s A.M.,

529 U.S. 277 (2000) . . . . . . . . . . . . . . . . . . . . . . 1, 15, 16

City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425 (2002) . . . . . . . . . . . . . . . . . . . . . . . . 15, 20

City of Renton v. Playtime Theatres, Inc.,

475 U.S. 41 (1986) . . . . 1, 7, 14, 15, 17-19, 21, 22, 25, 30, 32, 33

Clark v. Cmty. for Creative Non-Violence,

468 U.S. 288 (1984) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Combs v. Tex. Ent. Ass’n, Inc.,

347 S.W.3d 277 (Tex. 2011) . . . . . . . . . . 2, 12, 13, 14, 29

Curves, LLC v. Spalding County,

685 F.3d 1284 (11th Cir. 2012) . . . . . . . . . . . . . . . . . . 16

Deja Vu Showgirls v. Nev. Dep’t of Tax’n,

334 P.3d 392 (Nev. 2014) . . . . . . . . . . . . . . . . . . 2, 13, 28

vi

Cited Authorities

Page

Excalibur Grp., Inc. v. City of Minneapolis,

116 F.3d 1216 (8th Cir. 1997) . . . . . . . . . . . . . . . . . . . 16

Flanigan’s Enters. of Ga. v.

City of Sandy Springs,

703 F. App’x 929 (11th Cir. 2017) . . . . . . . . . . . . . . . . 19

Forsyth Cnty. v. Nationalist Movement,

505 U.S. 123 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Free Speech Coalition, Inc. v. Attorney General,

825 F.3d 149 (3d Cir. 2016) . . . . . . . . . . . . . . . . . . . . . 18

G.M. Enters. v. Town of St. Joseph,

350 F.3d 631 (7th Cir. 2003) . . . . . . . . . . . . . . . . . . . . 16

Grosjean v. Am. Press Co.,

297 U.S. 233 (1936) . . . . . . . . . . . . . . . . . . . . . . . . . . . 29

Hill v. Colorado,

530 U.S. 703 (2000) . . . . . . . . . . . . . . . . 2, 11, 15, 23, 24

International Outdoor Corp. v. City of Troy,

974 F.3d 690 (6th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 18

Leathers v. Medlock,

499 U.S. 439 (1991) . . . . . . . . . . . 3, 8, 10, 13, 24-28, 30

Maxim Cabaret, Inc. v. City of Sandy Springs,

816 S.E.2d 31 (Ga. 2018) . . . . . . . . . . . . . . . . . . . . 16, 19

vii

Cited Authorities

Page

Minneapolis Star and Tribune Co. v.

Minn. Comm’r of Revenue,

460 U.S. 575 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 26, 29

Police Department of Chicago v. Mosley,

408 U.S. 92 (1980) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

R.A.V. v. City of St. Paul,

505 U.S. 377 (1992) . . . . . . . . . . . . . . . . . . . . . . . . . . . 22

Reed v. Town of Gilbert,

576 U.S. 155 (2015) . . . . . . 2, 3, 10, 11, 14, 17-20, 30-32

Regan v. Tax’n with Representation of Wash.,

461 U.S. 540 (1983) . . . . . . . . . . . . . . . . . . . . . . . . 25, 28

Reagan National Advertising of Austin, Inc. v.

City of Austin,

972 F.3d 696 (5th Cir. 2020) . . . . . . . . . . . . . . . . . . . . 18

Reno v. ACLU,

521 U.S. 844 (1997) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Riley v. Ga. Ass’n of Club Execs.,

313 Ga. 364 (2022) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 7

Sable Commc’ns of Cal. v. FCC,

492 U.S. 115 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

Schad v. Borough of Mount Ephraim,

452 U.S. 61 (1981) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

viii

Cited Authorities

Page

Sensations, Inc. v. City of Grand Rapids,

526 F.3d 291 (6th Cir. 2008) . . . . . . . . . . . . . . . . . . . . 16

United States v. O’Brien,

391 U.S. 367 (1968) . . . . . . . . . . . . . . . . . . . . . . . 1, 8, 25

United States v. Playboy Entertainment Group,

529 U.S. 803 (2009) . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Wacko’s Too, Inc., v. City of Jacksonville,

134 F.4th 1178 (11th Cir. 2025) . . . . . . . . . . . . . . . . . . 19

Ward v. Rock Against Racism,

491 U.S. 781 (1989) . . . . . . . . . . . . . . . . . . . . . . . . . 8, 22

Young v. Am. Mini Theatres, Inc.,

427 U.S. 50 (1976) . . . . . . . . . . . . . . . . . . . . 1, 15, 16, 20

Constitutional Provisions

U.S. Const. amend. I . . . . . . . . . 1, 3, 6, 7, 9, 10-12, 14, 16,

19, 24, 25, 28, 29, 32, 33

Statutes

2015 Ga. Laws 675, § 1-2 . . . . . . . . . . . . . . . . . . . . . 6, 8, 32

2015 Ga. Laws 675, § 3-1 . . . . . . . . . . . . . . . . . . . . . . . . . . 4

O.C.G.A. § 15-21-201 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

ix

Cited Authorities

Page

O.C.G.A. § 15-21-201(1) . . . . . . . . . . . . . . . . . . . . . . 5, 27, 28

O.C.G.A. § 15-21-201(1)(A) . . . . . . . . . . . . . . 1, 3, 27, 30, 31

O.C.G.A. § 15-21-201(1)(B) . . . . . . . . . . . . . . . . . . . . . . . . 27

O.C.G.A. § 15-21-201(1)(C) . . . . . . . . . . . . . . . . . . . . . . . . 27

O.C.G.A. § 15-21-201(7) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

O.C.G.A. § 15-21-202(c) . . . . . . . . . . . . . . . . . . . . . . . . . . . .6

O.C.G.A. § 15-21-209(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

O.C.G.A. § 48-13-51(a)(5) . . . . . . . . . . . . . . . . . . . . . . . . . 28

O.C.G.A. § 48-13-90 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

Other Authorities

Leslie Gielow Jacobs, Making Sense of Secondary

Effects Analysis After Reed v. Town of Gilbert,

57 Santa Clara L. Rev. 385 (2017) . . . . . . . . . . . . . . . 19

1

INTRODUCTION

The State of Georgia enacted a small (1%) tax on

adult entertainment establishments to raise funds to

address a problem often exacerbated by this industry:

the sex trafficking of minors. The tax defines strip clubs

as (1) commercial establishments (2) that serve alcohol, (3)

where the entertainment includes “nude or substantially

nude . . . dancing.” O.C.G.A. § 15-21-201(1)(A). Petitioner

here, an association of strip clubs, challenged the tax as

somehow violating the First Amendment by burdening

nude dancing. It failed and now seeks this Court’s review.

But only three or four courts—including zero federal

circuit courts—have even addressed a question like this

and they all agree that these taxes are valid. There is no

split of authority or anything else for this Court to resolve.

The Georgia Supreme Court held that the tax

easily satisfies intermediate scrutiny, reasoning that

it is a content-neutral rule that addresses the negative

secondary effects of strip clubs. See, e.g., City of Renton

v. Playtime Theatres, Inc., 475 U.S. 41, 47, 50 (1986); see

also United States v. O’Brien, 391 U.S. 367, 376–77 (1968)

(content-neutral rules that incidentally affect symbolic

speech subject to intermediate scrutiny). That, of course,

makes perfect sense. This Court has long emphasized that

governments must be given wide latitude to “experiment

with solutions to [the] admittedly serious problems” caused

by these businesses. Young v. Am. Mini Theatres, Inc.,

427 U.S. 50, 71 (1976) (lead op.). And under this Court’s

precedents, nude dancing is barely protected by the First

Amendment at all: it “falls only within the outer ambit of

the First Amendment’s protection.” City of Erie v. Pap’s

A.M., 529 U.S. 277, 289 (2000) (lead op.).

2

The strip clubs ask this Court to intervene and

mandate strict scrutiny, but they hardly even try to

identify a split of authority. There are very few cases

involving taxes on strip clubs, and they all come out the

same way. See Deja Vu Showgirls v. Nev. Dep’t of Tax’n,

334 P.3d 392 (Nev. 2014); Combs v. Tex. Ent. Ass’n, Inc.,

347 S.W.3d 277 (Tex. 2011); Bushco v. Utah State Tax

Comm’n, 225 P.3d 153 (Utah 2009). The strip clubs argue

this Court should clarify whether the secondary effects

doctrine survived Reed v. Town of Gilbert, 576 U.S. 155

(2015), but Reed does not even mention the doctrine, let

alone question its validity. And lower courts have not

struggled to account for Reed in the context of adult

businesses—the petition does not identify a single court

that has relied on Reed to apply something more stringent

than intermediate scrutiny.

Likewise, the strip clubs’ obsession with Hill v.

Colorado, 530 U.S. 703 (2000), is hard to understand.

There, this Court upheld an arguably content-based

abortion clinic buffer-zone law partly on the ground that

it was justified without reference to protected speech. Id.

at 708. The petition mentions Hill no less than 29 times,

so the reader could be forgiven for assuming that this

case somehow implicates abortion. It does not. The tax at

issue here is targeted at the negative secondary effects of

strip clubs, a subject on which this Court’s precedents are

clear, settled, and have nothing to do with Hill. If strip

clubs want to overrule Hill, they should file a brief in a

case involving Hill.

Not only is there no split, there are also enormous

vehicle problems with Petitioner’s request. To start, this

case need not address the secondary effects doctrine at

3

all because Georgia’s tax does not implicate the First

Amendment in the first place. Georgia imposed a tax

on an industry, which States have plenary power to do.

Industry-specific taxes—even those that discriminate

between speakers—do not trigger First Amendment

scrutiny, except in rare circumstances, such as taxes

that single out the press or taxes that discriminate based

on ideas. Leathers v. Medlock, 499 U.S. 439, 444 (1991).

Just as Georgia could, if it wanted, tax movie theaters

(even though they engage in protected expression), it can

tax strip clubs (even if they engage in expression). The

Georgia Supreme Court assumed the First Amendment

applied and correctly held the tax satisfies intermediate

scrutiny, but if this Court were to grant the petition, the

antecedent and primary argument would be that the First

Amendment simply does not apply, meaning the Court

would have no need even to reach any question about

secondary effects.

And that isn’t the only vehicle problem. Assume, for

instance, that the Court treated this tax as a regulation.

The Court has clarified, post-Reed, that a regulation is

content based only if it “target[s] speech based on its

communicative content,” meaning it “applies to particular

speech because of the topic discussed or the idea or

message expressed.” City of Austin v. Reagan Nat’l

Advert. of Austin, LLC, 596 U.S. 61, 69 (2022) (quoting

Reed, 576 U.S. at 163). But the Georgia tax does not target

or even contemplate any ideas expressed by nude dancing

(whatever those may be). It references nude dancing as

one of three factors that identify strip clubs—charging

money, serving alcohol, and presenting nude or semi-nude

entertainment. O.C.G.A. § 15-21-201(1)(A). The tax is

the same sort of “content-agnostic . . . distinction” (e.g.,

4

does the sign refer to an on-site or off-site business) that

is content neutral under City of Austin. 596 U.S. at 76.

So here again, the Court would not even need to touch

secondary effects doctrine if, for some reason, it granted

the petition.

On top of those problems, the Georgia Supreme Court

was correct insofar as it did apply the secondary effects

doctrine. The tax is expressly dedicated to mitigating

a known secondary effect of the businesses to which it

applies (underage sex trafficking), meaning it is subject to

intermediate scrutiny. It satisfies that standard because

the State could reasonably believe that imposing a modest

tax on these businesses would further its important

governmental interest in protecting victims of child sex

exploitation, and the Assessment’s incidental, barely-there

burden on expression promotes the State’s interest in a

way that would be achieved less effectively absent the tax.

The Court should deny the petition.

STATEMENT

I.

Statutory Background

In 2015, the Georgia General Assembly passed the

Safe Harbor/Rachel’s Law Act, a suite of laws meant to

combat child sex trafficking. As relevant here, the Act

established the “Safe Harbor for Sexually Exploited

Children Fund,” 2015 Ga. Laws 675, 680, § 3-1, which

is funded directly by a new annual “state operation

assessment” on “adult entertainment establishment[s],”

id. at 683.

5

The statute def ines an “adult enter tainment

establishment” as “any place of business or commercial

establishment where alcoholic beverages of any kind are

sold, possessed, or consumed” and any of the following

three categories of adult entertainment occurs:

(A) The entertainment or activity therein

consists of nude or substantially nude persons

dancing with or without music or engaged in

movements of a sexual nature or movements

simulating sexual intercourse, oral copulation,

sodomy, or masturbation;

(B) The patron directly or indirectly is charged

a fee or required to make a purchase in order to

view entertainment or activity which consists

of persons exhibiting or modeling lingerie or

similar undergarments; or

(C) The patron directly or indirectly is charged a

fee to engage in personal contact by employees,

devices, or equipment, or by personnel provided

by the establishment.

O.C.G.A. § 15-21-201(1); see also id. § 15-21-201(7) (defining

“substantially nude”). Colloquially, these categories

generally describe strip clubs, lingerie modeling studios,

and massage parlors, respectively. Health- and fitnessrelated facilities are excluded. Id. § 15-21-201(1).

Under the Act, each covered business must pay

annually “a state operation assessment equal to the

greater of 1 percent of the previous calendar year’s gross

revenue or $5,000.00.” O.C.G.A. § 15-21-209(a). This money

6

is disbursed for sex-trafficking prevention and awareness

efforts and for “providing care, rehabilitative services,

residential housing, health services, and social services

. . . to sexually exploited children.” Id. § 15-21-202(c).

The General Assembly made specific findings in the

bill codifying the Act, including that:

The purpose of this Act is to protect a child

from further victimization after he or she is

discovered to be a sexually exploited child by

ensuring that a child protective response is in

place in this state. The purpose and intended

effect of this Act in imposing assessments

and reg ulations on adult enter tainment

establishments is not to impose a restriction

on the content or reasonable access to any

materials or performances protected by

the First Amendment of the United States

Constitution. . . .

2015 Ga. Laws 675, 677, § 1-2.

II. Proceedings Below

The Georgia Association of Club Executives is group of

strip clubs that are “adult entertainment establishments”

as defined by O.C.G.A. § 15-21-201. Pet.App.3a. The

Association first challenged the Assessment in 2017,

asserting that it was a “content-based” tax that violated

the First Amendment. Id. at 7a–8a. The trial court largely

rejected the Association’s arguments, but the Georgia

Supreme Court vacated that order and declared the case

moot without reaching the merits because the only named

7

defendant was sued in her individual capacity but was no

longer the commissioner of the Georgia Department of

Revenue. Riley v. Ga. Ass’n of Club Execs., 313 Ga. 364,

367–68 (2022).

On remand, the Association filed a pair of substantively

ident ica l su it s repeat i ng the Fi rst A mendment

arguments and adding a claim that the Assessment was

unconstitutionally overbroad. Pet.App.8a–9a. The state

trial court granted summary judgment for the State. Id.

at 10a. The court held that the Assessment was subject

to, and satisfied, intermediate scrutiny, reasoning that

it “further[s] an important governmental interest in

reducing sex trafficking and the exploitation of minors; [its]

express purpose is unrelated to the suppression of speech;

and any incidental restriction of the expressive ‘speech’

of nude dancing is no greater than essential to further

the important governmental interest.” Id. (quotation

omitted). The court also held that the Assessment was

not overbroad. Id.

The Georgia Supreme Court affirmed. The court

rejected the Association’s argument for strict scrutiny.

The court determined that the Assessment was content

neutral because it was “justified without reference to the

content of the regulated speech.” Id. at 14a–15a (quoting

Renton, 475 U.S. at 48) (emphasis removed). It noted

that the legislature had made clear that the purpose of

targeting adult entertainment establishments was not

to restrict any performances, but instead to “address

the deleterious secondary effects . . . associated with

adult entertainment establishments that allow the sale,

possession, or consumption of alcohol” by funding a

“protective response” through taxes on the industry

8

responsible for those secondary effects. Id. at 16a (quoting

2015 Ga. Laws 675, 677, § 1-2). The court acknowledged the

State’s argument that rational basis should apply under

Leathers and its progeny, but it declined to rule on that

question. Id. at 17a. It opted instead to “assume without

deciding that intermediate scrutiny applies.” Id. at 16a.

Applying that standard, the court held that “the State

has an important interest in remedying the secondary

effects caused by adult entertainment establishments, and

it furthered that interest by creating a fund to support

sexually exploited children.” Id. at 20a. The court reasoned

that the extensive body of studies and testimony before the

legislature were “more than sufficient” to “demonstrate a

connection between adult entertainment establishments

and child sexual exploitation.” Id. at 24a.

The court also concluded that the Assessment was

narrowly tailored because it “promotes a substantial

government interest that would be achieved less

effectively absent the regulation.” Id. at 28a (quoting

Ward v. Rock Against Racism, 491 U.S. 781, 798–99 (1989)

(clarifying that fourth O’Brien prong does not impose a

“least restrictive or least intrusive means” test)). The

Assessment served the State’s interest “in a direct and

effective” way by “requiring the industry that tends to be

the focal point of negative effects to fund the remedy for

the harm it creates,” and focuses exclusively on the State’s

goals by using 100% of the funds collected to fund antitrafficking efforts. Id. at 33a–34a (quotations omitted).

Moreover, the court noted, “any burdens on protected

expression are relatively de minimis,” given that the

Assessment “does not prohibit nude dancing, regulate

the content of nude dancing, restrict the time, place, or

9

manner of nude dancing, or prohibit the combination of

nude dancing and alcohol.” Id. at 37a.

The court rejected the Association’s argument that a

general tax would be less restrictive as “simply an effort

to smuggle the least restrictive means requirement from

strict scrutiny into intermediate scrutiny.” Id. at 34a–35a.

In any event, the Court noted, the “State’s interest is not

merely a general interest in raising revenue to combat a

particular harm,” and “the Assessment also furthers the

State’s interest in ensuring that the industry responsible

for that harm, i.e., adult entertainment establishments

that serve alcohol, rather than the general public, pays

for the remedy.” Id. at 36a.

Thus, “like the dozens of other laws, regulations,

and ordinances restricting the combination of nudity

and alcohol upheld by this Court and the United States

Supreme Court,” the court held that Assessment did not

violate the First Amendment. Id. at 39a.

REASONS FOR DENYING THE PETITION

This case does not warrant further review. First,

the question presented (the validity of taxes on adult

entertainment establishments) does not arise often, and

when it does, the handful of courts that have addressed

it have uniformly rejected arguments that the taxes are

subject to strict scrutiny. They have upheld the taxes

under rational-basis or intermediate scrutiny. Nor is there

a split on the applicability of the secondary effects test

to regulations of adult businesses more generally. Both

this Court and lower courts have uniformly applied lesser

scrutiny to uphold both content-neutral and content-based

regulations of all sorts in this context.

10

Second, this case would be a poor vehicle for

considering the question presented. The Assessment is a

tax; it does not actually regulate anything. And taxes can

constitutionally discriminate among speakers so long as

they do not single out the press, target a small group of

speakers, or discriminate based on the ideas expressed.

Leathers, 499 U.S. at 444–47. The Assessment does none

of those things, so the First Amendment should not

apply at all. If the Court were to grant this petition, that

is the primary argument it would be addressing, which

Petitioner barely even mentions.

Moreover, even if the Assessment is viewed as a

regulation rather than a tax, it would not implicate

the secondary effects doctrine, which concerns only

content-based reg ulations of adult businesses. A

regulation is content based if it “target[s] speech based

on its communicative content,” meaning it “applies to

particular speech because of the topic discussed or the

idea or message expressed.” City of Austin, 596 U.S. at

69 (quoting Reed, 576 U.S. at 163). The Assessment does

not focus in any way on the communicative content of nude

dancing; it simply references nude dancing to identify the

covered business—just the sort of “content-agnostic . . .

distinction” that is content neutral under City of Austin.

Id. at 76. The scope of the secondary effects doctrine thus

is irrelevant to the outcome here.

Third, the Georgia Supreme Court’s decision was

correct. Viewing this as a secondary effects case, the

Assessment is content neutral because it targets the

secondary effects of adult entertainment establishments

and does not draw distinctions based on the content of

any speech. And it is narrowly tailored because it only

11

minimally burdens speech (businesses can avoid the tax

simply by not serving alcohol) and focuses on the industry

most clearly associated with prostitution (including

underage prostitution).

I.

There is no split of authority on any question

implicated here.

The petition hardly tries to identify a split of authority,

and for good reason. In the few cases involving taxes on

adult businesses, all of them upheld the taxes, applying

intermediate scrutiny or less. And the petition’s attempt

to gin up “confusion” by pointing to Reed and Hill make no

sense. This case is not about sign ordinances or abortion

buffer zones, and courts are not confused about any of this.

A.

In the few cases that have arisen, courts

have unanimously rejected arguments that

strict scrutiny should apply to taxes on adult

entertainment establishments.

The question presented here—the constitutionality of

taxes on adult entertainment establishments—does not

come up very often. Federal appellate courts do not appear

to have addressed it at all. See Pet.App.12a (“[W]e have not

found . . . any federal appellate decision (much less from the

Supreme Court) considering a First Amendment challenge

to a tax on adult entertainment establishments like the one

at issue here.”). And the “handful” of state supreme courts

to address the issue, id. at 13a, have uniformly rejected

challengers’ arguments for strict scrutiny and upheld the

taxes under either intermediate or rational-basis scrutiny.

12

Bushco v. Utah State Tax Commission involved

a tax on “sexually explicit businesses,” defined as any

business where a “nude or partially denuded” employee

performs services for at least 30 days within a calendar

year. 225 P.3d 153, 158 (Utah 2009). The Utah Supreme

Court held that the tax was facially content neutral

because it was triggered by a type of conduct (nudity),

and not any particular expression. Id. at 161. The court

then held that the tax satisfied intermediate scrutiny.

Id. at 163. It furthered a substantial state interest of

providing treatment to sex offenders, and the tax was

narrowly tailored because it left open alternative means

of conveying erotic messages: the tax “neither prohibit[ed]

public nudity nor impose[d] criminal penalties—it simply

impose[d] an additional cost on the commercial use of

nudity as a method of expression.” Id. at 168.

Combs v. Texas Entertainment Association, Inc.

involved a challenge to a statewide $5-per-customer fee

imposed on “sexually oriented businesses,” defined as

establishments that provide “live nude entertainment or

live nude performances” and that allowed on-premises

consumption of alcoholic beverages. 347 S.W.3d 277, 278

(Tex. 2011). The proceeds were to be used primarily to

fund programs for sexual-assault victims. Id. at 279.

The Texas Supreme Court rejected the plaintiffs’ calls

for strict scrutiny because the tax was content neutral:

“The fee is not a tax on unpopular speech but a restriction

on combining nude dancing, which unquestionably has

secondary effects, with the aggravating influence of

alcohol consumption.” Id. at 287. The court then held

that the tax satisfied intermediate scrutiny. It furthered

the government’s interest because it “provide[d] some

disincentive to present live nude entertainment where

13

alcohol is consumed,” and the “[l]egislature could

reasonably infer that the alternative of non-alcoholic

venues was sufficient so as not to work a suppression of

expression in nude dancing.” Id. at 288. The court also

held that the tax was narrowly tailored because “[t]he $5

fee is a minimal restriction on the businesses, so small

that respondents argue it is ineffective,” and businesses

could avoid the fee by presenting the nude entertainment

without alcohol. Id.

Finally, Deja Vu Showgirls v. Nevada Department of

Taxation involved a challenge to Nevada’s 10% excise tax on

admission, food, refreshment, and merchandise provided

at live-entertainment facilities with maximum occupancies

of less than 7,500. 334 P.3d 392, 395 (Nev. 2014). A group

of strip clubs argued that the tax was subject to strict

scrutiny as a “differential tax of speakers protected under

the First Amendment that ... discriminates on the basis of

the content of taxpayer speech [by exempting many types

of family-oriented live entertainment], targets a small

group of speakers [strip clubs], and threatens to suppress

speech.” Id. at 399. The Nevada Supreme Court rejected

this argument, noting that the case did not fit any of the

categories of taxes identified in Leathers as implicating

the First Amendment. Id. at 401. It did not target a small

group of speakers, because it applied to over 90 facilities

including raceways, nightclubs, performing arts centers,

and sporting events. Id. Nor did the legislature’s decision

to exempt certain businesses from an otherwise broadly

applicable test “suggest an intention to suppress any

ideas.” Id. (citing Leathers, 499 U.S. at 452–53). Because

the tax did not implicate any of the factors discussed in

Leathers, the court concluded that heightened scrutiny

did not apply and went on to apply rational-basis review,

which the tax easily satisfied. Id.

14

The Association’s attempt to demonstrate a split of

authority on this point is half-hearted at best. Its only

supposed example of disagreement on this point is 9000

Airport LLC v. Hegar, in which a federal district court

held at the preliminary injunction stage that a challenger

to the same Texas tax upheld in Combs could show a

likelihood of success on its First Amendment claim. No.

4:23-CV-03131, 2023 WL 7414581, at *4–7 (S.D. Tex. Nov.

9, 2023). But the Fifth Circuit recently reversed that

decision on res judicata grounds. 9000 Airport LLC v.

Hegar, No. 23-20568, 2025 WL 1024951, at *1–4 (5th Cir.

Apr. 7, 2025) (not reported).

At bottom, then, Petitioners ask this Court to weigh in

on an issue that has been addressed by at most four state

supreme courts (and zero federal appellate courts), where

all of those courts have agreed that the sort of taxes at

issue are subject to (at most) intermediate scrutiny. And

all of the taxes at issue easily passed constitutional muster.

To be sure, more States or local governments might

enact taxes like Georgia’s in the future. But if courts

begin to disagree about how to handle challenges to these

statutes, the Court can step in then. There is no reason to

step in now, with few cases and no disagreement.

B. There is no split of authority on the separate

question of whether the secondary effects

doctrine continues in force.

Without a split of authority on the question presented,

the Association contends that there has “been confusion

among lower courts about the fate of City of Renton after

Reed,” with some courts going so far as to abrogate “some

of their pre-Reed case law that relied on City of Renton.”

15

Pet. at 5. In addition to urging the Court to “resolve this

confusion,” id., the Association attempts to position this

case as an opportunity to overturn Hill, the abortionclinic-buffer-zone case, going so far as to rechristen

secondary effects the Renton/Hill doctrine. Id. at 4, 5, 6,

7, 12, 18, 21, 31. All of this is wrong.

1. For nearly fifty years, this Court has consistently

held that regulations of physical adult entertainment

establishments are subject to intermediate scrutiny.

That holds true even if the regulation in question is

facially content based. See, e.g., Young, 427 U.S. at 53

(ordinance applied to “adult” theaters, as determined by

sexual content of films presented). As long as these sorts

of regulations are “aimed not at the content” of adult

entertainment, but “rather at the secondary effects of”

establishments that feature this sort of entertainment,

then they are subject to the same analysis as contentneutral time, place, and manner restrictions—i.e.,

intermediate scrutiny. Renton, 475 U.S. at 47–49. A

secondary-effects-targeted regulation will be upheld

if it “is designed to serve a substantial governmental

interest and allows for reasonable alternative avenues

of communication.” Id. at 50. The Court has applied

this standard to uphold substantial restrictions on adult

businesses, Young, 427 U.S. at 71–73 & n.34 (lead op.)

(restrictive zoning); Renton, 475 U.S. at 47–48 (same);

Barnes v. Glen Theatre, Inc., 501 U.S. 560, 570–71 (1991)

(lead op.) (nudity ban); Pap’s A.M., 529 U.S. at 300–01 (lead

op.) (same); City of Los Angeles v. Alameda Books, Inc.,

535 U.S. 425, 429, 438–39 (2002) (lead op.) (restrictions on

clustering of adult businesses), stopping short only for an

outright ban on “live entertainment,” Schad v. Borough

of Mount Ephraim, 452 U.S. 61, 76–77 (1981).

16

This flexible approach towards regulations of sexually

oriented businesses follows from the Court’s repeated

admonitions that any expressive conduct involved “falls

only within the outer ambit of the First Amendment’s

protection.” Pap’s A.M., 529 U.S. at 289. “[I]t is manifest

that society’s interest in protecting this type of expression

is of a wholly different, and lesser, magnitude than the

interest in untrammeled political debate.” Young, 427 U.S.

at 70 (lead op.); see also Barnes, 501 U.S. at 566 (lead op.).

Lower courts have applied these principles to

routinely uphold a w ide variety of adult business

regulations. In addition to the sorts of location and nudity

limitations discussed in this Court’s cases, courts have

upheld regulations restricting contact between dancers

and customers, Sensations, Inc. v. City of Grand Rapids,

526 F.3d 291, 299 (6th Cir. 2008); mandating minimum

stage height and buffer zones, G.M. Enters. v. Town of

St. Joseph, 350 F.3d 631, 634, 638–39 (7th Cir. 2003), cert.

denied, 543 U.S. 812 (2004); prescribing hours of operation,

Ass’n of Club Execs. of Dallas, Inc. v. City of Dallas, 83

F.4th 958, 961, 969 (5th Cir. 2023), cert. denied, 144 S. Ct.

1064 (2024); and limiting signage, Excalibur Grp., Inc.

v. City of Minneapolis, 116 F.3d 1216, 1223 (8th Cir.

1997). In particular, courts routinely uphold regulations

on the combination of alcohol and adult entertainment,

including outright bans on the pairing. See, e.g., Maxim

Cabaret, Inc. v. City of Sandy Springs, 816 S.E.2d 31, 34

(Ga. 2018); Curves, LLC v. Spalding County, 685 F.3d

1284, 1289-90 (11th Cir. 2012) (upholding city ordinance

prohibiting nude dancing on licensed premises); City of

Chi. v. Pooh Bah Enters., 865 N.E.2d 133, 139–40, 161

(Ill. 2006) (same), cert. denied, 552 U.S. 941 (2007); 181

South Inc. v. Fisher, 454 F.3d 228, 230, 233–34 (3d Cir.

17

2006) (upholding regulation that banned “any lewdness

or immoral activity” on licensed premises).

2. The Association’s attempts to manufacture a split

in the face of this consistency fall flat. For one, there is no

meaningful “confusion among lower courts about the fate

of City of Renton after Reed.” Pet. at 5. Reed addressed a

sign code that treated directional, ideological, and political

signs differently. 576 U.S. at 159–61. The Court explained

that “a law is content based on its face” and subject to

strict scrutiny, if it “draws distinctions based on the

message a speaker conveys,” even if the law had a “benign

motive” or “content-neutral justification.” Id. at 163, 165,

166. The Court held the ordinance was facially content

based because, among other things, it treated ideological

messages more favorably than political messages. Id. at

164, 169. The Court did not mention the secondary effects

doctrine, let alone overrule it.

Later, in City of Austin, the Court rejected as “too

extreme” the argument that a regulation requiring “any

examination of speech or expression inherently triggers

heightened First Amendment concern.” 596 U.S. at 69,

73. The Court instead clarified that its precedents “have

consistently recognized that restrictions on speech may

require some evaluation of the speech and nonetheless

remain content neutral.” Id. at 72. Based on that principle,

the Court deemed the on-site/off-site sign distinction at

issue facially content neutral because it drew only locationbased distinctions and had no illicit purpose. Id. at 71. The

Court also emphasized that a strict reading of Reed would

“contravene numerous precedents” upon which “Reed did

not purport to cast doubt.” Id. at 74–75. City of Austin, in

short, “dispelled” any notion that Reed silently overturned

18

decades of this Court’s secondary effects precedents. Club

Execs. of Dallas, 83 F.4th at 964.

No surprise, then, that all the Association’s purported

examples of this confusion predate City of Austin. See

Pet at 21–22 (citing cases). Free Speech Coalition, Inc. v.

Attorney General was a challenge to age-verification and

recordkeeping requirements for producers of pornography.

825 F.3d 149, 154–56 (3d Cir. 2016). The court of appeals

applied strict scrutiny, noting that this Court had limited

its application of the secondary effects doctrine to “brickand-mortar purveyors of adult sexually explicit content,”

and declined to extend the doctrine beyond that realm in

light of Reed. Id. at 163. Cahaly v. Larosa dealt with an

anti-robocall statute and explained that the circuit’s past

cases applying intermediate scrutiny to content-based

sign and solicitation ordinances were abrogated by Reed.

796 F.3d 399, 404–05 (4th Cir. 2015). The court did not

mention the secondary effects doctrine. International

Outdoor Corp. v. City of Troy concerned a content-based

sign ordinance that exempted “political” and other

categories of signs from permitting requirements. 974

F.3d 690, 707 (6th Cir. 2020). The court of appeals held

that strict scrutiny applied in light of Reed, but similarly

made no reference to the secondary effects doctrine. See

id. at 702–08. And the Fifth Circuit’s decision in Reagan

National Advertising of Austin, Inc. v. City of Austin,

which dealt with a restriction on off-premises signs, 972

F.3d 696, 699 (5th Cir. 2020), was reversed by this Court

as a misunderstanding of Reed, 596 U.S. at 73–76. In fact,

the court of appeals later clarified that “[a]ny shadow

cast on the secondary effects doctrine by our Reagan I

opinion has been dispelled by City of Austin.” Club Execs.

of Dallas, 83 F.4th at 964–65 (applying Renton to uphold

regulation of adult businesses).

19

Tellingly, in the Association’s only examples of lower

courts actually considering challenges to regulations

of adult entertainment establishments, those courts

uniformly held that Reed did not displace the secondary

effects doctrine. See BBL, Inc. v. City of Angola, 809

F.3d 317, 326 n.1 (7th Cir. 2015) (“We don’t think Reed

upends established doctrine for evaluating regulation of

businesses that offer sexually explicit entertainment, a

category the Court has said occupies the outer fringes

of First Amendment protection.”); Maxim Cabaret, 816

S.E.2d at 36 n.4 (rejecting argument for strict scrutiny,

noting that “Reed did not involve secondary-effects

legislation” or “mention, much less overrule,” this Court’s

secondary effects precedents); Flanigan’s Enters. of Ga.

v. City of Sandy Springs, 703 F. App’x 929, 935 (11th Cir.

2017) (per curiam) (“[W]e cannot read Reed as abrogating

either the Supreme Court’s or this Circuit’s secondaryeffects precedents.”). See also Leslie Gielow Jacobs,

Making Sense of Secondary Effects Analysis After Reed

v. Town of Gilbert, 57 Santa Clara L. Rev. 385, 414 (2017)

(“[N]o court has read Reed to do away with Secondary

Effects Analysis.”).1

1. In Wacko’s Too, Inc., v. City of Jacksonville, the court of

appeals applied the secondary effects doctrine to uphold an ordinance

prohibiting dancers under 21 from performing in strip clubs. 134

F.4th 1178, 1188 (11th Cir. 2025). Judge Newsom, concurring,

suggested there is tension between Reed and the secondary effects

doctrine. Id. at 1196. In doing so, Judge Newsom highlighted the

underlying doctrinal error the entire secondary effects framework

aims to account for: this Court’s designation of erotic dancing as

constitutionally protected expression. See id. at 1198 (“So long as

the Supreme Court continues to hold that erotic dancing and the

like are protected by the First Amendment . . . ” (emphasis added)).

Though Judge Newsom overstated any supposed tension between

Reed and Renton (especially in the light of City of Austin), if there

20

So whatever “confusion” the Association’s lowercourt cases demonstrate, it has nothing to do with the

secondary effects doctrine. Lower courts have continued

to apply intermediate scrutiny to regulations of adult

entertainment businesses, just as they did prior to Reed.

They have no reason to do otherwise, given that Reed

did not even hint at overruling the Court’s decades of

secondary effects precedents from Young to Alameda

Books.

3. The Association’s other attempts to demonstrate

“confusion” also fail. It contends, for instance, that the

Court has sometimes “applied strict scrutiny in an

adult-entertainment context,” implying a lack of clear

guidance for how to assess such regulations. Pet. at 4. The

Association cites United States v. Playboy Entertainment

Group for this point, id., but Playboy involved a statute that

required television stations featuring erotic entertainment

to scramble their programs or limit broadcasts to certain

hours, 529 U.S. 803, 806 (2009). The Court declined the

government’s invitation to apply intermediate scrutiny

because “[t]he overriding justification for the regulation

is concern for the effect . . . on young viewers,” and it

“focuse[d] only on the content of the speech and the direct

impact that speech ha[d] on its listeners,” which is the

“essence of content-based regulation.” Id. at 811–12.

That is unsurprising: the distinction between primary

effects (i.e., the impact of speech on its listener) and

were tension, the appropriate course would be to correct the original

sin and overrule decisions holding that stripping is constitutionally

protected expression. Regardless, the Court should not grant review

here to address that question, which would not be necessary to the

outcome.

21

secondary effects (crime and blight outside a strip club)

is the key conceptual underpinning of the secondary

effects doctrine. As the Court explained in Boos v. Barry,

“[t]he content of the films being shown inside the theaters

[in Renton] was irrelevant and was not the target of the

regulation.” 485 U.S. 312, 320 (1988) (lead op.). Rather,

“the ordinance was aimed at the secondary effects of

such theaters in the surrounding community” such as

“prevention of crime, maintenance of property values, and

protection of residential neighborhoods.” Id. (quotation

omitted). The Boos Court clarified that if the ordinance

in Renton had been “justified by the city’s desire to

prevent the psychological damage it felt was associated

with viewing adult movies,” i.e., the primary effects, then

it would be subject to strict scrutiny. Id. at 321.

The Court has consistently followed this principle

in applying strict scrutiny to regulations of primary

speech, regardless of the context. See, e.g., id. at 316,

321 (strict scrutiny applied to limitation on signs that

could bring foreign governments into “public disrepute”

because it targeted “primary impact” of the speech); Sable

Commc’ns of Cal. v. FCC, 492 U.S. 115, 126, 130–31 (1989)

(applying strict scrutiny to ban on “dial-a-porn” messages

under the same reasoning); Reno v. ACLU, 521 U.S. 844,

867–68 (1997) (applying strict scrutiny where restrictions

were meant “to protect children from the primary effects

of ‘indecent’ and ‘patently offensive’ speech, rather than

any ‘secondary’ effect of such speech”).

Next, the Association’s citation of Boos and other

cases for the proposition that “this Court has assumed

the validity of the content-neutral justification rule in

even more areas” than regulation of adult businesses is

misleading at best. See Pet. at 3–4. The Court discussed

22

the secondary effects doctrine in those cases only in

rejecting the government’s arguments for its application,

or in highlighting that the regulation in question truly was

targeted at the content of the restricted speech. See Boos,

485 U.S. at 320–21 (lead op.) (rejecting argument to apply

intermediate scrutiny because “[l]isteners’ reactions to

speech are not the type of ‘secondary effects’ we referred

to in Renton”); R.A.V. v. City of St. Paul, 505 U.S. 377,

380, 394 (1992) (applying strict scrutiny to ordinance

banning racially inflammatory symbols because it was

“not directed to secondary effects within the meaning of

Renton”); City of Cincinnati v. Discovery Network, Inc.,

507 U.S. 410, 430 (1993) (noting that city’s reliance on

Renton was misplaced because there were “no secondary

effects attributable” to prohibited commercial newsracks).

Nor, for that matter, does Ward v. Rock Against

Racism, 491 U.S. 781 (1989), demonstrate an expansion

of the secondary effects doctrine. See Pet. at 3, 20, 23, 26,

29. Ward involved a New York City regulation requiring

performers in a Central Park concert venue to use a cityowned sound system and independent sound technician

in order to control volume levels of concerts. 491 U.S. at

787. The Court referenced Renton for the principal that

“[a] regulation that serves purposes unrelated to the

content of expression is deemed neutral, even if it has an

incidental effect on some speakers or messages but not

others.” Id. at 791. But the Court did not actually apply a

secondary effects analysis; it instead applied the standard

for content-neutral time, place, or manner restrictions.

Id. at 791, 796 (quoting Clark v. Cmty. for Creative NonViolence, 468 U.S. 288, 293 (1984)). That was appropriate,

because as even the Association concedes here, the

regulation, which did not refer to content in any way,

23

“would have been content neutral under any standard.”

Pet. at 23.

Nothing about these decisions shows the Court tacitly

approving of extending the secondary effects doctrine

to new contexts. To the contrary, as the Court noted in

Boos, the secondary effects analysis implicates concerns

that were “almost unique to theatres featuring sexually

explicit films.” 485 U.S. at 320 (lead op.).

4. Finally, Hill v. Colorado, which the Association

cites throughout its petition, does not somehow warrant

the Court’s review here. See Pet. at 3, 4, 5, 6, 7, 12, 18, 20,

21, 23, 26, 31, 32. Hill was a challenge to a statute that

made it illegal to “knowingly approach” someone within

100 feet of the entrance of any healthcare facility “for the

purpose of passing a leaflet or handbill to, displaying a sign

to, or engaging in oral protest, education, or counseling”

with that person. 530 U.S. at 707 (quotation omitted).

The Court held that the statute was content neutral

because it (a) was a regulation of where speech can occur,

not the speech itself, (b) was not adopted “because of

disagreement with the message it conveys,” and (c) “the

State’s interests in protecting access and privacy, and

providing police with clear guidelines, are unrelated to

the content of the demonstrators’ speech.” Id. at 719–20

(quotation omitted).

Even assuming Hill was wrongly decided, it has

nothing to do with this case. Hill says nothing about the

secondary effects doctrine—the decision does not even

mention those words. It certainly has no bearing on the

taxing or regulation of adult businesses, and thus played

24

no role in the decision below, which was instead guided by

this Court’s well-established secondary effects caselaw.

So even if the Court were inclined to revisit Hill, it should

do so in a case that has something to do with Hill.

***

In sum, the Association invites the Court to engage

in a wide-ranging reassessment of its First Amendment

doctrine absent any sort of split or even “confusion” among

the lower courts about the actual questions presented

here. That may be an appropriate subject for academic

discourse, but it is not a reasonable basis for certiorari.

II. This case is a poor vehicle to address the issues

raised in the petition.

Even if the Court were inclined to reassess the

contours of the secondary effects doctrine for the first

time in decades, this case presents an exceptionally

poor vehicle for doing so. The secondary effects doctrine

is used to assess facially content-based regulations of

adult businesses. But here, the Assessment is neither a

regulation nor content based. It is a flat 1% tax that does

not regulate protected expression in any way. It does

not implicate anything more than rational-basis review.

Leathers, 499 U.S. at 447. And even if one assumed it were

a regulation, it is content neutral, because it references

expression (nude dancing) only as a means of identifying

one of the types of businesses subject to the tax, and not

because of any “communicative content.” City of Austin,

596 U.S. at 69 (quotation omitted). Accordingly, if the

Court were to grant review, these arguments, not any

argument about secondary effects, would dominate the

dispute.

25

A.

The Assessment is a tax on an entire industry

and does not implicate the First Amendment

at all under Leathers.

The Georgia Supreme Court assumed without

deciding that intermediate scrutiny applied because the

Assessment satisfies it. Pet.App.16a. But this sort of tax

need not satisfy intermediate scrutiny at all. Intermediate

scrutiny typically applies to regulations that either

indirectly impact expressive conduct, O’Brien, 391 U.S. at

377, or combat the secondary effects of an adult business

that presents some expressive activity, Renton, 475 U.S.

at 49. The Assessment, by contrast, “regulates” nothing.

It is a minimal (1%) tax on an entire industry, only part

of which (strip clubs) features some expression falling on

the margins of First Amendment protection. If this Court

were to grant, this would be the primary issue, not the

secondary effects doctrine.

Duly enacted taxation schemes enjoy a “strong

presumption” of constitutionality. Leathers, 499 U.S.

at 451. “[E]ven more than in other fields,” States “have

especially broad latitude in creating classifications and

distinctions in tax statutes.” Id. (quoting Regan v. Tax’n

with Representation of Wash., 461 U.S. 540, 547 (1983)).

The presumption of constitutionality for taxes is so strong

that “differential taxation of speakers, even members

of the press, does not implicate the First Amendment

unless the tax is directed at, or presents the danger of

suppressing, particular ideas.” Id. at 453.

The upshot is that taxes are constitutionally suspect

only if they fall into certain narrow categories that

demonstrate an intent to suppress particular ideas. See

26

id. at 447. This Court has identified three narrow (and

overlapping) categories of taxes that fit this description.

The first are taxes that single out the press, because “a

tax limited to the press raises concerns about censorship

of critical information and opinion.” Id. at 447. Second, a

tax is constitutionally suspect if it targets only a “small

group of speakers,” typically within the press itself. Id.

These sorts of taxes pose censorship risks because they

will likely affect “only a limited range of views” and thus

“distort the market for ideas.” Id. at 448. Third, a tax

raises constitutional concerns if it discriminates based

on the content of taxpayer speech. Id. at 447.

The Assessment does not fall into the narrow

categories of taxes that warrant heightened First

Amendment scrutiny. No one argues that it targets

the press or otherwise implicates traditional First

Amendment concerns such as political speech. Nor does

the Assessment target a small handful of speakers in a

way likely to censor certain viewpoints. The Assessment

is more like the tax this Court upheld in Leathers, which

applied “uniformly to the approximately 100 cable systems

then operating in the State,” 499 U.S. at 448, than the one

in Arkansas Writers’ Project, Inc. v. Ragland, 481 U.S.

221, 229 n.4 (1987) (A.W.P.), which “f[ell] on a limited group

of [three] publishers.” The Assessment, in other words,

“hardly resembles a ‘penalty for a few’” that threatens

to “distort the market for ideas.” Leathers, 499 U.S. at

448 (citing Minneapolis Star and Tribune Co. v. Minn.

Comm’r of Revenue, 460 U.S. 575, 592 (1983), and A.W.P.,

481 U.S. at 229 & n.4)).

Finally, the Assessment does not fall in the third

category of taxes that “discriminate[] on the basis of the

27

content of taxpayer speech.” Id. at 447. The Association’s

constitutional challenge is premised on the notion that

the statute facially targets protected speech because it

mentions “nude or substantially nude persons dancing.”

Pet. at 15; O.C.G.A. § 15-21-201(1)(A). But a law is content

based only “if it targets speech based on its communicative

content—that is, if it applies to particular speech because

of the topic discussed or the idea or message expressed.”

City of Austin, 596 U.S. at 69 (quotation omitted). And

the statute here does nothing of the sort. It refers to

nude dancing not to single out any particular message,

but rather just to describe strip clubs.

The Act’s text and structure make this clear. Each

of the subparts of the definition of “adult entertainment

establishment” descr ibes an identif iable ty pe of

establishment in the industry. Lingerie modeling studios

“charge[] [patrons] a fee” or “require[] [them] to make

a purchase” in order to view “persons exhibiting or

modeling lingerie or similar undergarments.” O.C.G.A.

§ 15-21-201(1)(B). Erotic massage parlors charge patrons

a “fee to engage in personal contact by employees,

devices, or equipment, or by personnel provided by the

establishment.” Id. § 15-21-201(1)(C). And while the stripclub definition refers to nude dancing “with or without

music,” its applicability does not turn only on the presence

of nude dance; establishments also fall within the definition

if they feature “nude or substantially nude persons . . .

engaged in movements of a sexual nature or movements

simulating sexual intercourse, oral copulation, sodomy, or

masturbation.” Id. § 15-21-201(1)(A). And on top of that,

they have to serve alcohol. Id. § 15-21-201(1).

The statute demonstrates that the State went out of

its way to avoid targeting any protected expression for

28

taxation. The Assessment applies not to nude dancing

per se, but to the combination of nude dancing with

“business[es] or commercial establishment[s] where

alcoholic beverages of any kind are sold, possessed, or

consumed.” Id. Anyone remains free to engage in or view

nude dancing in a non-commercial setting without being

subject to the tax. And even commercial establishments

featuring nude dancing will not be subject to the tax as

long as they do not allow alcohol on the premises. The

Assessment, in other words, is not “directed at” any

expressive conduct, and does not “present[] the danger of

suppressing” any club’s “particular ideas.” Leathers, 499

U.S. at 453. See also Deja Vu, 334 P.2d at 399.

Because the Assessment does not implicate the First

Amendment, it is subject only to rational-basis review,

which it easily satisfies. See Regan, 461 U.S. at 547.

Targeted taxes are commonplace and serve a variety of

legitimate purposes, including raising revenue to offset

a particular industry’s negative societal impacts—or just

raising revenue, period. So just as Georgia may reasonably

tax hotels to fund stadium construction, O.C.G.A. § 48-1351(a)(5), or tax rental cars to promote “industry, trade,

commerce, and tourism,” id. § 48-13-90, it was plainly

rational for the State to tax this industry to raise revenue

for any number of legitimate ends, especially combatting

the deleterious effects of that industry.

The Association argues that even if governments have

wide latitude to regulate the speech associated with adult

businesses without triggering strict scrutiny, something

special about taxes means that they necessarily come in

for strict scrutiny. Pet. at 24. But none of the Association’s

29

purported authority for this novel point helps it. Its tax

cases are inapposite because they involved targeted,

content-based taxation of speech falling within the core

of First Amendment protection, whether freedom of

assembly, see Forsyth Cnty. v. Nationalist Movement,

505 U.S. 123, 134 (1992) (fees for parade permits based

on message conveyed and expected public response), or

the press, see Grosjean v. Am. Press Co., 297 U.S. 233,

250 (1936) (punitive tax on newspapers critical of the

government); Minneapolis Star, 460 U.S. at 591 (tax

targeting only large newspapers); A.W.P., 481 U.S. at

229 (tax distinguished between general interest and

publications covering religion or sports). As discussed

above, the only courts that have considered First

Amendment challenges to taxes that reference nude

dancing have squarely rejected arguments for strict

scrutiny. Combs, 347 S.W.3d at 286; Bushco, 225 P.3d at

160–62.

The Assessment, in short, does not implicate the

First Amendment at all. But even if one disagreed with

the above analysis, this is the relevant issue the Court

would have to address here. There is no reason to grant

the petition to address a (splitless) question when even

that question would be preempted by a separate (splitless)

question.

B. The Assessment is facially content neutral

and thus does not require application of the

secondary effects doctrine to avoid strict

scrutiny.

Even if the Assessment were viewed as a regulation

rather than a tax, it still would not require the secondary

30

effects doctrine because it is facially content neutral. The

Association has contended throughout this litigation that

laws that refer on their face to a certain type of protected

expression are invariably content based and thus subject to

strict scrutiny. Pet.App.14a. That argument derives from

Reed, which held that strict scrutiny applied whenever “a

regulation of speech on its face draws distinctions based

on the message a speaker conveys,” even if the law had

a “benign motive” or “content-neutral justification.” 576

U.S. at 163, 165 (quotation omitted).

But in City of Austin this Court characterized

the Association’s view of Reed as “too extreme,” and

“reject[ed] . . . the view that any examination of speech

or expression inherently triggers heightened First

Amendment concern.” City of Austin, 596 U.S. at 69, 73.

The Court instead clarified that its pre-Reed precedents,

which remain undisturbed, “have consistently recognized

that restrictions on speech may require some evaluation

of the speech and nonetheless remain content neutral.” Id.

at 72. Based on that principle, it held that a sign ordinance

that drew location-based distinctions was content neutral

even though one had to examine the content to determine

whether a sign was compliant. Id. at 69. That laid to rest

any notion that Reed abrogated or qualified precedents

like Renton or Leathers.

The Assessment is content neutral under Reed and

City of Austin for the reasons discussed above. See supra

26–27. True, the government must examine the expression

at issue to determine whether the performer is engaged

in “nude or substantially nude” dancing. O.C.G.A. § 1521-201(1)(A). But the content-neutrality analysis does not

reduce to “ask[ing]: who is the speaker and what is the

31

speaker saying.” City of Austin, 596 U.S. at 69; see also

id. at 75 (rejecting the “read-the-sign rule adopted by the”

lower court in that case). The key factor is instead whether

the regulation “targets speech based on its communicative

content,” meaning it “applies to particular speech because

of the topic discussed or the idea or message expressed.”

Id. (quoting Reed, 576 U.S. at 163). The Assessment does

nothing of the sort. It references nude dancing solely as

one of several factors that identify strip clubs: commercial

establishment + nude dancing + serves alcohol. O.C.G.A.

§ 15-21-201(1)(A).

Unlike the Reed ordinance, which singled out “political”

and other types of signs for particular treatment, 576 U.S.

at 159–61 the Assessment does not apply because of any

“topic,” “idea,” or “message,” id. at 163. How could it?

Dancing is simply a medium through which the dancer can

convey any number of messages, or none at all. Removing

the dancer’s clothing does not change that. Nude dancing

can certainly convey a “message of eroticism,” see Barnes,

501 U.S. at 565, but it can also convey any number of other

ideas from disgust to satire.

The Assessment does not favor one of those ideas over

another. It does not speak to ideas or messages at all. It

just applies a tax to a certain type of business. In that way

it is much less like the ordinance in Reed, which required

the reader to determine “is this designed to influence

the outcome of an election?”, see id. at 160, or the one in

Police Department of Chicago v. Mosley, which required

asking “is this picketing labor picketing?”, 408 U.S. 92,

95 (1980), and more like the regulation in City of Austin,

which simply asked “does this refer to a business here

or somewhere else?”, see 596 U.S. at 71. The Assessment

32

examines speech only to answer the question, “is this

a strip club or some other type of business?” That is

fundamentally a “location-based and content-agnostic

. . . distinction [that] does not, on its face, ‘single out a

specific subject matter for differential treatment.’” Id. at

76 (quoting Reed, 576 U.S. at 163).

Because the Assessment’s strip-club definition is

facially content neutral, there was no need for the court

below to engage in a secondary effects analysis, which

applies only to content-based regulations of speech. See

Renton, 475 U.S. at 47. The question presented, in short,

is unnecessary for resolution of this case.

III. The ruling below was correct.

On top of everything else, the Georgia Supreme Court

was correct that the Assessment, viewed as secondary

effects regulation, satisfies intermediate scrutiny. To

recap, even a facially content-based regulation of adult

businesses is treated as content neutral if it is meant to

address their secondary effects. Renton, 475 U.S. at 49.

Here, the Assessment is plainly targeted at the secondary

effects of adult establishments like strip clubs, rather than

the content of the expression itself. The Georgia General

Assembly made clear that purpose of the Act was “not to

impose a restriction on the content or reasonable access

to any materials or performances protected by the First

Amendment,” but instead to “address the deleterious

secondary effects . . . associated with adult entertainment

establishments that allow the sale, possession, or

consumption of alcohol” by funding a “protective response”

through assessments imposed on the industry responsible

for those secondary effects. Ga. L. 2015, p. 675, § 1-2. That

33

fits squarely within the definition of a secondary effects

regulation. See Renton, 475 U.S. at 49.

The Assessment also easily satisfies intermediate

scrutiny. It was undisputedly within the State’s power

to enact, and the Association does not dispute that the

State has a compelling interest in combatting child sexual

exploitation. Pet.App.19a, 21a–22a. The legislature relied

on abundant evidence that the Assessment would advance

this interest, including studies showing a strong spatial

correlation between prostitution (including underage

prostitution) and these businesses, as well as testimony

from women who were trafficked in or around these

establishments when they were underage. Id. at 24a–25a.

The Assessment’s incidental burden on expression

“promotes a substantial government interest that would

be achieved less effectively absent the regulation.”

Ward, 491 U.S. at 799. The proceeds of the Assessment

all go to funding the response to secondary effects, Pet.

App.34a, and the one percent tax is considerably less

restrictive than bans on nudity or outright prohibitions

of the combination of nude dancing and alcohol, both of

which have been repeatedly upheld as constitutional,

id. at 37a–38a. Moreover, a targeted tax furthers the

State’s interest more than a general tax by “ensuring

that the industry responsible for that harm, i.e., adult

entertainment establishments that serve alcohol, rather

than the general public, pays for the remedy.” Id. at 36a.

The Assessment does not violate the First Amendment.

34

CONCLUSION

For the reasons set out above, this Court should deny

the petition.

Respectfully submitted,

Logan B. Winkles

Deputy Attorney

General

Frances C. Mulderig

Senior Assistant

Attorney General

Christopher M. Carr

Attorney General of Georgia

Stephen J. Petrany

Solicitor General

Counsel of Record

Ross W. Bergethon

Principal Deputy

Solicitor General

Office of the Georgia

Attorney General

40 Capitol Square, SW

Atlanta, GA 30334

(404) 458-3408

spetrany@law.ga.gov

Counsel for Respondents